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ESSAY

Transitional Justice in Post-war
Sri Lanka: Dilemmas and
Prospects
Nipunika O. Lecamwasam

T

he ending of Sri Lanka’s armed conflict with the
military defeat of the LTTE in May 2009
brought to the fore a plethora of concerns
related to accountability and reconciliation.
The country is considered a failed test of Transitional Justice
(TJ) (Newman 2016), with neither perpetrators of alleged
crimes being punished nor victims being compensated. The
two principal parties to the conflict are seen as being unable
to reach a settlement. This paper explores what prospects
remain for TJ with the recent regime change in January 2015
and explores under what circumstances TJ mechanisms can
succeed in the country.
President Rajapaksa’s 2015 defeat not only marked the end
of an era of authoritarianism but also the beginning of a dual
transition of the country i.e. from war to peace, and from
authoritarianism to democratic rule. This dual transition,
however, will not be meaningful unless the ethnic question
is addressed in a manner satisfactory to all parties concerned.
This is because neither democracy nor peace can be sustained
without the genuine interest and involvement of all segments
of the population.
The regime change in January 2015 saw the election of a
new President, Maithripala Sirisena, and a new coalition government comprising elements of most of the major political
parties (including Rajapaksa’s Sri Lanka Freedom Party) in
August. The new government looks more favourable from
a TJ point of view since it has pledged its commitment to
further reconciliation and accountability. In particular, it
has promised to pursue accountability through a domestic
process “within the country’s legal framework”(‘udi 60lska
w¿;a rgla yok mxp úO ls%hdj,sh 2015, p.13).1 However, it
should be noted here that the new government’s emphasis is
on domestic mechanisms (which remain vague and unspecific) that might not question or undermine the sovereignty of
the country. No Sri Lankan government would be willing to
risk the displeasure of the Sinhalese voter base. The majority
of Sinhalese strongly oppose criminal justice that is central
to TJ,2 claiming that it would be used against the Sri Lankan
armed forces that are considered heroes by them.3
The Tamil National Alliance, on the other hand, is toning
down its hard-line stance in terms of TJ. The United Nations
(UN) ‘OHCHR Investigation on Sri Lanka’ (OISL) released
a report4 in September 2015 and this was given a guarded
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welcome by the TNA citing it as the ‘best possible’ consensual outcome. The report has both restorative and retributive justice elements and the TNA in an unprecedented
move declared that it would encourage Tamils to do some
soul-searching regarding their own wrongdoings and crimes
committed in their name.5 As Salter (2015) notes, “in their
own way both pronouncements were firsts for the Tamil
community, opening up new possibilities of inter-ethnic
dialogue” (Salter 2015).
In this context, this paper examines the difficulty of pursuing the two diametrically opposed visions of TJ, envisioned
by the Sinhalese and Tamils in Sri Lanka. It attempts to
understand the failure of communication at both societal
and political levels that has led to the Sinhalese and Tamil
communities perceiving their predicament in totally different
lights. As a result, the discussion about TJ in both communities has led to demands that reflect contradictory views of
justice.
TJ in Sri Lanka after the January 8th Election
The United Nations Human Rights Commission
(UNHRC) Resolution 30/1 adopted in October 2015, which
was co-sponsored by the Government of Sri Lanka (GoSL)
and the United States of America, is an interesting and
important landmark move by the GoSL. Contrary to earlier
efforts to resist international discussion on what took place
during the last stages of the war by the previous government,
the new government was seen cooperating with international
actors in bringing forth a solution to the country’s problem.
The new government has pledged many a reform including
the promotion of the Rule of Law, constitutional amendments, reconciliation attempts and, most importantly, steps
towards TJ. The government’s pledge for TJ comes as part
of its programme aimed at good governance. While there is
much hype about reforming corrupt institutions and establishing the Rule of Law (which clearly serve electoral purposes), this government like its predecessors, is very much silent
on accountability issues. While the Rule of Law is a pressing
and imminent concern, without accountability it does not
promise to address the grievances of the Tamil community in
any meaningful way. This is because at the core of the Tamil
case for justice lies the need for government accountability in
relation to how the war concluded.
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As was pointed out previously, this government like its
predecessors will be hesitant to invite the wrath of its Sinhalese voter base by responding positively to Tamil demands
on accountability. However, it has already taken symbolic
steps towards reconciling the two communities. For instance,
singing the national anthem in Tamil is one such step that
was repeatedly squashed by the previous regime of Rajapaksa.
The cancellation of Victory Day celebrations on May 18th
is another such step. However, the accountability issue that
lies at the heart of Tamil demands for justice has still not
been discussed as a desirable end by the government. Given
the infancy of the new regime, it is still too early to expect
it to pursue the establishment of a war crimes court where individual perpetrators of alleged war crimes will be tried. The
top priority of the current regime therefore, as is shown by
numerous steps it has taken so far, is the promotion of truth
and justice by engaging in reconciliation-oriented restorative
justice mechanisms.
With regard to the TJ mechanisms proposed by the new
regime, three important suggestions stand out: Introducing a
new Constitution with an emphasis on Fundamental Rights,
establishing an Office of Missing Persons and a Consultation
Task Force on Reconciliation Mechanisms.
The Subcommittee of the Constitutional Assembly on
Fundamental Rights has now called for public proposals for
the amendment of the Fundamental Rights chapter. The
proposed Constitution will thus have a new Fundamental
Rights chapter that will take into account proposals by actors
in many a field including but not limited to judicial reforms,
the content of the Constitution with regard to Fundamental
Rights; what rights are fundamental; how those are enforced,
and what remedies are due if such rights are breached. This
is an important step within the larger debate of TJ where
constitutionalism would come to play an important role in
safeguarding the rights of citizens in general and minorities
in particular. However, it is too early to comment on this
move since it is still at a proposal stage and nothing can be
said about its content. However, if executed prudently, this
will be a major step in safeguarding the Rule of Law in the
country and thereby protecting human rights, particularly
minority rights. While the protection of minority rights does
not bear any direct significance from a TJ perspective, given
the history of oppression of minority rights in post-independence Sri Lanka, this will be a welcome first step in averting
further ethnic hatred and its resultant animosity.
Legislation to set up an Office of Missing Persons was
passed in the Sri Lankan parliament recently. Importantly,
the Office will not have any temporal restrictions, which
suggests having the mandate to investigate all disappearances
committed during numerous regimes. It will also maintain
a database of disappeared persons and shall have provisions
for victim and witness protection as well as reparations for
disappearances. Certificates of absence (for those who are
not established dead beyond reasonable doubt) too shall be
issued for the disappeared. This can act as an important office
in achieving truth and justice once established. Probing into
disappearances is an important step in establishing both
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criminal liability and truth. If effectively implemented, this
Office could be of great use for achieving the end of TJ in
a post-war situation where building inter-ethnic trust is a
major task, particularly in the context of Sri Lanka’s history
of war-related disappearances.
The Consultation Task Force on Reconciliation Mechanisms looks at a long-term solution to the ethnic question
with reconciliation as its prime motive. The Task Force is
committed to a multi-pronged approach to TJ and reconciliation and includes the Office of Missing Persons, a Reparations Policy, Hybrid Courts to investigate into allegations
of war crimes, and a Truth and Reconciliation Commission.
While these are all promising steps towards addressing
grievances of war affected communities, it should also be
noted that they are still at the proposal stage and are calling
for proposals from numerous actors including government,
non-governmental and civil society actors. There is much
controversy regarding the proposed hybrid courts which
the Tamil community does not fully endorse. Many in the
community believe that domestic actors will invariably have
a better say, which in their eyes would result in a decided
pro-Sinhala slant to decisions taken by the court (Sivapalan
2015). Given the history of failed Commissions of Inquiry in
the country, it is only natural for Tamils to doubt the efficacy
of any domestic mechanism. In contrast, the Sinhalese grievance is about incorporating an international character to the
courts, however minor they may be. Sinhalese treat any move
that is international with much scepticism especially because
the popular perception is that the international community
is hand in glove with the pro-Tamil Diaspora to promote
pro-LTTE sentiments. The proposed model of a Truth Commission is a welcome first step. However, truth alone as is
emphasized by the Sinhalese will not serve any purpose in the
absence of accountability for mass atrocities.
A noteworthy point here is that despite showing remarkable potential for addressing certain serious issues in a true
spirit of reconciliation, there remains the question of implementation. As noted above, in Sri Lanka’s heavily polarized
society, the presence of a plethora of contending narratives
especially among the two principal ethnic groups seems
to point to irreconcilable interests regarding the national
question. It is important to note the differing readings of the
principal ethnic groups regarding the military phase of the
conflict. For the Sinhalese, the LTTE’s staunch demand for
a separate state and disregard for any settlement that would
amount to less than this goal made them the main obstacle
to any meaningful process of negotiation. The ending of the
war has always been of utmost importance to the Sinhalese
since the common perception is that for three decades, the
war was what prevented the country from progressing. Many
Sinhalese also believe that the war engulfed the country in
an all pervading fear for life and property. With regard to the
military phase and ending of the conflict, the Tamil narrative
is essentially negative mainly because many of the casualties
occurred in the Tamil dominated areas i.e. the Northern and
Eastern parts of the country. These notions in turn have resulted in a call for truth and criminal justice as envisioned by
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the diametrically opposed Sinhalese and Tamil worldviews.
The Herculean task any government that comes into power
is saddled with is to strike a balance between these demands
in a manner that would steer the country away from a relapse
into violence.
Uyangoda presents a more nuanced argument regarding
the dichotomy between the Sinhalese and Tamils, which he
characterizes as “twin solitudes” (2012: 19). According to
him ethnic solitudes continue to be reproduced preventing
the two communities from engaging in any meaningful
dialogue. Twin ethnic solitudes are thus the manner in which
the national question is perceived by each community. These
perceptions run parallel to each other offering no common
ground for discussion and ultimately end in a blame game.
In Sri Lanka, political life is primarily defined by ethnic politics mainly due to the three decades long war and the resultant polarization of society. As a result of the war, ethnicities
now tend to view themselves as mutually exclusive political
communities with divergent political aspirations. Therefore,
the aspirations of one ethnic group are viewed inimically by
the other and vice versa. As eloquently explained by Uyangoda (2012), such ethno-nationalist ideologies overpower
democratic ideals thus tainting democratic aspirations and
issues related to justice. Explaining this dichotomy, Uyangoda (2012: 22) states among other things that the “incapacity
of the two dominant ethno-nationalisms in Sri Lanka to understand each other” renders reconciliation an impossible end
to achieve. Economic and security overtones of the Sinhalese
establishment and political undertones of the Tamil politicians as an answer to the national question are the visible
manifestations of this ethno-national dichotomy. Uyangoda’s
account ends by calling for a revision of the value framework
that envisions a “shared political destiny” (2012: 31).
Against such a polarized backdrop, there arise numerous
important questions applicable in the context of post-war Sri
Lanka: In the absence of a will for a shared political destiny,
how will TJ succeed in Sri Lanka? Is there any one mechanism that will be welcomed by both the Sinhalese and the
Tamils? How can a government satisfy polarized groups in
delivering justice? Will deliverance of such justice avoid a
relapse to violence?
Reflections on the TJ Dilemma in Sri Lanka
Within a context of lingering legacies, TJ mechanisms
should be tactfully negotiated because the long-term aim of
any such mechanism is preventing societies from relapsing
into violence. Accountability for mass crimes can never be
‘overemphasized’. There cannot be democratic transition
without addressing the question of accountability. However,
if it is addressed in the immediate aftermath of the conflict
where political and military leaders held in high regard are
tried, chances are high that the society might relapse into violence.6 What then should be done? Does this mean criminal
justice is not a viable option?
The best way to handle such a situation according to much
of the literature on TJ, would be to start off with restorative
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justice mechanisms including and especially Truth Commissions.7 Here, the truth of all victims, victors (if there are any)
and perpetrators should be recorded and publicly presented.
The ultimate aim of this body would be to arrive at a shared
truth.8 This truth would then form the basis for administration of all needed requirements and forms of justice. If these
diverse narratives are not entertained, Sri Lanka will always
remain a contested case with no proper justice administered.
Postponing justice carries with it the danger of the truth being distorted or even vanishing particularly with the passage
of time since Sri Lanka does not have the truth properly documented and has a history of failed commissions of inquiry
and unpublished reports.
Once truth is established according to this literature,
what should be done about it? This literature suggests that
establishing the truth alone will not suffice for TJ to be
meaningful. Given the sensitivity of the Sri Lankan situation,
it would be desirable to have an open and inclusive process of
truth seeking, which would result in the acceptance of legally
binding instructions about how to proceed with the legacies of crime.9 It should be noted here that a society’s moral
inclination to seek redress of grievances in this way is also
instrumental for the success of such an endeavour.
The above is the standard approach adopted by TJ literature. But in Sri Lanka, given the heavy polarization of
society, is this workable? This paper by no means attempts
to suggest a workable mechanism for TJ in Sri Lanka. It
rather attempts to highlight the main obstacles in the path of
TJ in the Sri Lankan society. As commonly discussed in TJ
literature, Sri Lanka too needs a plethora of TJ mechanisms
to address grievances. However, this plethora of mechanisms
includes strands preferred and opposed by each respective
community. As mentioned before, for Sinhalese truth is the
preferred way, while criminal justice is not. For the Tamils, it
is vice versa. Against such a backdrop and the underpinning
political calculations, is a meaningful middle path possible?
Given the current situation, “many things that appear to be
compromises can turn out to be immensely problematic for
one group or the other. Take the issue of investigations: to
begin with, what’s the ‘compromise’ one has in mind here?
Between the two ‘extremes’ of international investigation
and no investigation, the compromise/middle path would
be a domestic inquiry (or is it a hybrid?). Then again, if it’s
domestic, it would be an absolute farce for the Tamils. If it’s
genuinely hybrid, then it would be immensely problematic
for the Sinhalese” (Senaratne 2016).10
Conclusion
The Sri Lankan situation regarding TJ raises more questions than answers. The dilemma of pursuing two diametrically opposed views of TJ is the most pressing issue any
government that comes into power has to deal with. While
the need for the adoption of a multitude of approaches is
very much felt, as explained before, the heavy polarization of
society poses multiple questions as to how one can negotiate
TJ in Sri Lanka. While the new government shows potential and willingness to engage in a meaningful TJ process,
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it is still too early to comment on its ability to bring forth a
workable solution. Such a solution would be premised on a
recognition of the inter-dependent processes that can ensure
that the national question is addressed, victims are compensated and perpetrators are brought to justice.
However, it would be naïve to expect that the Tamil
community would be willing to move forward in the absence
of any meaningful initiative to acknowledge and address
their need for criminal justice. The question is – would this
government be any different from its predecessors in terms
of addressing the ethnic question? Would it risk the wrath of
the majority voter base in the name of justice? If the answer
is no, can it be expected of any government in Sri Lanka to
deliver justice to part of the citizenry at the risk of losing
popular endorsement? Given the track record of the Good
Governance regime so far, it is unlikely that it would ‘shake
things up’ to accommodate Tamil demands.
Notes
1 Mahinda Rajapaksa also promised to deliver on this through the Lessons
Learnt and Reconciliation Committee (LLRC). However, the extremist
character of his regime that was mainly backed by Sinhalese Nationalist
forces made minorities lose faith in his ability to deliver any good through
the proposed mechanisms. The new regime on the other hand, is a coalition
of many a faction including Tamils and Muslims and therefore, this regime’s
promises look more “favourable” to TJ than the ones made by the previous
administration.
2 Criminal justice or criminal prosecutions aims to punish the perpetrators
of crimes. One standard consequence of a protracted violent conflict is a
large number of agents involved in crimes. Crimes are typically the result
of coordinated efforts of many individuals, groups, and organizations, from
direct perpetrators to military and political leadership. Not all of them can
be prosecuted, and this is why criminal justice involves a difficult problem of
selecting those who will be brought to the court (Mendez 1997). But, even
if selectivity in criminal justice is done in a legitimate way, more remains to
be done. This is due to two broad considerations. First, responsibility goes
beyond legally defined guilt: many contributed to wrongdoing in a manner
that is not captured by criminal law. Second, the suffering of victims and
harm they endured cannot be fully addressed by prosecution. This is why in
most post-conflict situations TJ requires using additional mechanisms. The
choice of such mechanisms depends on the character of conflict, the types of
harm and suffering, and the character of the post-conflict situation.
3 See DeVotta (2016) and ‘Sinhala Opposition to Accountability for Tamil
Suffering’ (2011).
4 See http://tinyurl.com/hah83cw for the full report.
5 See Jeyaraj (2015) for a detailed analysis of the UN report that exposed
the LTTE’s brutality against Tamil civilians and Sampanthan’s change of
stance regarding the Tamil narrative that dominates the TJ discourse.
6 Timing plays an important role in delivering criminal justice. Since the
aim of any TJ mechanism is to ultimately reconcile warring factions and to
end injustice, any mechanism adopted in the name of TJ should be tailored
prudently so as to ensure the society is on the way to reconciliation. Mendez
(1997 & 2008) discusses the importance of the timing factor with regard
to criminal justice. He argues that it is prudent to postpone criminal justice
given the sensitivity of each situation. However, this is by no means a hint
that criminal justice should be dropped.
7 See Hayner (2010) for a comprehensive account of successes and failures
of Truth Commissions along with their goals. Truth is an important component of TJ since it helps establish facts regarding a conflict. According to the
International Center for Transitional Justice
… establishing the truth about what happened and who is responsible for
serious crimes helps communities to understand the causes of past abuse
and end it. Without accurate knowledge of past violations, it is difficult
for a society to prevent them from happening again. The truth can assist
in the healing process after traumatic events; restore personal dignity,

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often after years of stigmatization; and safeguard against impunity and
public denial. Establishing truth can initiate a process of reconciliation,
as denial and silence can increase mistrust and social polarization. (eds.
González & Varney2013, p.4)
8 The idea of a shared truth is important in heavily polarized societies since
a ‘shared truth’ contains elements of the truth held by all communities.
While the objective of establishing such a truth is not pleasing all communities, at the end of the day by documenting the truth or facts regarding a
conflict to the furthest possible extent. However, it is possible to arrive at
a solution that can be accepted by many since a ‘shared truth’ will involve
evidence regarding perpetrators and victims from all sides.
9 See Truth Seeking: Elements of Creating an Effective Truth Commission (eds.
González & Varney 2013) for an account of the role of Truth commissions
in establishing “social and historical contexts of violations” that help “establish moral or political responsibility” (pp.10-11). See Flory (2015) for the
relationship between Truth Commissions and criminal justice and how they
have come to complement each other over time rather than the commonly
held misconception of them opposing each other.
10 Kalana Senaratne, personal communication, email, 13 May 2016.

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